Law Approving The Agreement Concerning The Transfer And Sharing Of Contributions To The Fund's Unique Resolution, Signed In Brussels On May 21, 2014 (1) (2)

Original Language Title: Loi portant assentiment à l'Accord concernant le transfert et la mutualisation des contributions au fonds de résolution unique, signé à Bruxelles le 21 mai 2014 (1) (2)

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27 NOVEMBER 2015. - Act to approve the Agreement on the Transfer and Mutualization of Contributions to the Single Resolution Fund, signed in Brussels on May 21, 2014 (1) (2)



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
Article 1er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. The Agreement on the Transfer and Mutualization of Contributions to the Single Resolution Fund, signed in Brussels on 21 May 2014, will take effect.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 27 November 2015.
PHILIPPE
By the King:
Minister of Foreign and European Affairs,
D. REYNDERS
The Minister of Finance,
J. VAN OVERTVELDT
Seal of the state seal:
The Minister of Justice,
K. GEENS
____
Notes
(1) House of Representatives (www.lachambre.be):
Documents: 54-1356
Full report : 12/11/2015
(2) List of related States

AGREEMENT ON TRANSFER AND MUTUALIZATION OF CONTRIBUTIONS TO THE UNITED NATIONS RESOLUTION FUNDS
The Contracting Parties, the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, Romania, the Republic of Croatia, the Republic of Italy, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, Hungary, the Republic of Malta,
Determined to achieve an integrated financial framework within the European Union whose banking union is a fundamental element;
Recalling the decision of 18 December 2013 of the representatives of the Member States of the euro zone, gathered in the Council of the European Union, concerning the negotiation and conclusion of an intergovernmental agreement on the Single Resolution Fund (hereinafter referred to as the "Funds") established under the rules of the European Parliament and the Council establishing uniform rules and a uniform procedure for the resolution of the credit institutions and certain investment companies in the framework of a single resolution mechanism (1)
Considering the following:
(1) In recent years, the European Union has adopted a number of essential legal acts for the completion of the domestic market in the financial services sector and for the guarantee of the financial stability of the euro area and the Union as a whole, as well as for the process leading to a more integrated economic and monetary union.
(2) In June 2009, the European Council called for the development of a "uniform regulation applicable to all financial institutions operating in the single market". The Union has therefore established a uniform set of harmonized prudential rules that credit institutions must respect throughout the Union, through Regulation (EU) No. 575/2013 of the European Parliament and Council (2) and Directive 2013/36/EU of the European Parliament and Council (3).
(3) The Union has also created the European supervisory authorities (ESA), to which a number of microprudential surveillance tasks are entrusted. This is the European Banking Authority (EFA) established by Regulation (EU) No 1093/2010 of the European Parliament and Council (4), the European Insurance and Pension Authority (EAPP) established by Regulation (EU) No 1094/2010 of the European Parliament and Council (5) and the European Financial Markets Authority (AEMF) established by Regulation (EU) No 1095/2010 of the European Parliament. The creation of the SEAs was accompanied by the European Committee on Systemic Risk, which was entrusted with certain macroprudential monitoring functions, by Regulation (EU) No 1092/2010 of the European Parliament and Council (7).
(4) The Union has established a single monitoring mechanism by means of Council Regulation (EU) No 1024/2013 (8) entrusting to the European Central Bank (ECB) specific missions relating to the prudential surveillance policies of the credit institutions and conferring to the ECB, acting jointly with the competent national authorities, supervisory powers with respect to the credit institutions established in the Member States whose currency is the euro and in the Member States whose euro is the place
(5) Through the Directive of the European Parliament and the Council establishing a framework for the recovery and resolution of credit institutions and investment companies (9) (hereinafter referred to as "BRR Directive"), the Union harmonizes national legislation and regulations relating to the resolution of credit institutions and certain investment companies, including the establishment of national financing mechanisms for the resolution.
(6) At its meeting on 13 and 14 December 2012, the European Council indicated that "[d]without a context where bank surveillance is effectively transferred to a single monitoring mechanism, a single resolution mechanism will be required, which has the expertise to ensure that any bank of participating Member States can be subject to a resolution procedure, using appropriate instruments". At the same meeting, the European Council also stated that "[the single resolution mechanism] should be based on the contributions of the financial sector itself and include appropriate and effective support mechanisms. This support device should be fiscally neutral in the medium term, ensuring that public aid is compensated by ex post levies on the financial sector". In this context, the Union has adopted the MRU Regulation which creates a centralized resolution decision-making system with adequate financial resources through the establishment of the Fund. The MRU Regulation applies to entities located in participating Member States.
(7) The MRU Regulation sets out in particular the Fund and defines the terms and conditions of its use. The BRR Directive and the MRU Regulation define the general criteria for determining the setting and calculation of the ex ante and ex post contributions of the institutions that are necessary to finance the Fund, and provide for the obligation of Member States to collect these contributions at the national level. Nevertheless, participating Member States that receive contributions from institutions in their respective territory in accordance with BRR and MRU regulations remain competent to transfer these contributions to the Fund. The obligation to transfer to the Fund contributions received at the national level does not arise from the Union's law. This obligation will be established by this Agreement, which sets out the conditions under which the contracting parties, in accordance with their respective constitutional rules, agree together to transfer to the Fund the contributions they receive at the national level.
(8) Each participating Member State should exercise its power to transfer the contributions received at the national level in a manner that respects the principle of loyal cooperation enshrined in Article 4, paragraph 3, of the Treaty on the European Union, according to which the Member States, among other things, facilitate the fulfilment by the Union of its mission and refrain from any action that might jeopardize the achievement of the objectives of the Union. This is why participating Member States should ensure that financial resources are transferred to the Fund in a uniform manner, thereby ensuring its proper functioning.
(9) Accordingly, the Contracting Parties have concluded this Agreement by which they establish, inter alia, their obligation to transfer to the Fund contributions received at the national level, under uniform criteria, terms and conditions, in particular the allocation, during a transitional period, of contributions they receive at the national level to different compartments corresponding to each contracting party, as well as the progressive sharing of the use of these compartments in such a way as to this effect.
(10) The contracting parties recall that they are intended to maintain fair conditions and to minimize the overall cost of the resolution for taxpayers and to take into account the overall burden on the respective banking sectors when the contributions to the Fund and the tax system will be defined.
(11) The content of this Agreement is limited to the specific elements of the Fund that continue to fall within the competence of the Member States. This Agreement does not affect the common rules established by EU law and does not alter their scope. Rather, it is conceived as an instrument complementing the Union's banking resolution legislation and contributing to the achievement of the objectives of the Union's policies, to which it is inherently linked, in particular the establishment of the domestic market in the field of financial services.
(12) The national legislative and regulatory provisions implementing the BRR directive, including those relating to the development of national funding arrangements, apply from 1er January 2015. Provisions concerning the establishment of the Fund in accordance with the MRU Regulation shall, in principle, be applicable from 1er January 2016. As a result, Contracting Parties will receive contributions to the national funding mechanism for the resolution that they are required to implement until the date of application of the MRU Regulation, when they begin to receive contributions to the Fund. In order to strengthen the Fund's financial capacity as soon as it was established, the contracting parties undertake to transfer to the Fund the contributions they received under the BRR directive until the date of application of the MRU Regulation.
(13) It is recognized that there may be situations where the resources available in the Fund are not sufficient to fund a particular resolution and where ex post contributions that should be collected to cover the additional amounts required are not immediately mobilizable. In accordance with the declaration of the Eurogroup and the Council of 18 December 2013, in order to ensure sufficient and constant funding during the transitional period, it is appropriate that the contracting parties concerned by a particular resolution measure provide relay funding from national sources or the European Stability Mechanism (ESM), in accordance with the agreed procedures, including by making possible temporary transfers between national compartments. Contracting Parties should establish procedures to respond to any requests for relay funding in a timely manner. A common support system will be developed during the transitional period. It will facilitate loans by the Fund. The banking sector will ultimately be responsible for reimbursements to all participating Member States through contributions, including ex post contributions. These devices will ensure equivalent treatment, in terms of rights and obligations, both during the transitional period and thereafter, of all contracting parties involved in the single monitoring mechanism and the single resolution mechanism, including those that adhere to these mechanisms at a later stage. These arrangements will ensure equitable conditions with Member States that do not participate in the single monitoring mechanism and the single resolution mechanism.
(14) This agreement should be ratified by all Member States whose currency is the euro as well as by Member States whose currency is not the euro that participate in the single monitoring mechanism and the single resolution mechanism.
(15) It is appropriate that Member States whose currency is not the euro and which are not Contracting Parties adhere to this Agreement, with the same rights and obligations as the Contracting Parties, from the date on which they actually adopt the euro as a currency or from the date on which the decision of the ECB to establish the close cooperation referred to in Article 7, paragraph 2, of Regulation (EU) No. 102
(16) On 21 May 2014, representatives of the governments of the Member States authorized the contracting parties to request the European Commission and the Single Resolution Council (CRU) to carry out the tasks set out in this Agreement.
(17) Article 15 of the MRU Regulation on the date of its initial adoption establishes the general principles governing the resolution, under which the shareholders of the establishment subject to the resolution procedure are the first to bear the losses and creditors of the establishment subject to the resolution procedure bear the losses after the shareholders, according to the order of priority of their claims. As a result, Article 27 of the MRU Regulation establishes an instrument of internal renaffing that requires that a contribution to the absorption of the losses of the establishment subject to the resolution procedure and to its recapitalization, the amount of which may not be less than 8% of the total of its liabilities, including equity, as a result of the application of the valuation method provided for in Article 20 of the MRU Regulation Furthermore, sections 18, 52 and 55 of the MRU Regulation, on the date of its initial adoption, set out a number of procedural rules relating to the decision process of the CRU and the institutions of the Union. These elements of the MRU Regulation are an essential basis for the consent of the Contracting Parties to be bound by this Agreement.
(18) The contracting parties recognize that the relevant provisions of the Vienna Convention on the Law of Treaties and customary international law apply in respect of any fundamental change in circumstances that have occurred against their will and that affect the essential basis of their consent to be bound by the provisions of this Agreement, as referred to in Considering 17. The contracting parties may therefore invoke the consequences of any fundamental change in the circumstances against their will under public international law. If a contracting party invokes such consequences, any other contracting party may refer to the Court of Justice of the European Union (hereinafter referred to as the Court of Justice). The Court of Justice should be empowered to verify the existence of a fundamental change in circumstances and the consequences thereof. The Contracting Parties recognize that the invocation of such consequences after the repeal or modification of any element of the MRU Regulation referred to in the Considering 17 that would be made against the will of one of the Contracting Parties and likely to affect the essential basis of their consent to be bound by the provisions of this Agreement shall constitute a dispute concerning the application of this Agreement for the purposes of article 273 of the Treaty on the Functioning of the European Union, which may by Any Contracting Party may also request the Court of Justice to prescribe interim measures in accordance with Article 278 of the Treaty on the Functioning of the European Union and Articles 160 to 162 of the Rules of Procedure of the Court of Justice (10). When deciding on the dispute, as well as on the granting of interim measures, the Court of Justice should take into account the obligations of the contracting parties under the Treaty on the European Union and the Treaty on the Functioning of the European Union, including the obligations relating to the single resolution mechanism and its integrity.
(19) It is up to the Court of Justice to determine whether the institutions of the Union, the CRU and the national resolution authorities apply the domestic swelling instrument in a manner consistent with the law of the Union, in accordance with the remedies provided for by the Treaty on the European Union and the Treaty on the Functioning of the European Union, in particular Articles 258, 259, 260, 263, 265 and 266 of the Treaty on the Functioning of the European Union.
(20) As soon as this Agreement constitutes an instrument of public international law, the rights and obligations set forth in this Agreement shall be subject to the principle of reciprocity. Accordingly, the consent of each contracting party to be bound by this agreement depends on the exercise of the rights and compliance in an equivalent manner by each contracting party. Accordingly, the non-compliance by a contracting party with its obligation to transfer contributions to the Fund should result in the exclusion of access to the Registered Entities Fund in its territory. The CRU and the Court of Justice should be empowered to establish and declare that a contracting party has failed to transfer the contributions in accordance with the procedures set out in this Agreement. The contracting parties recognize that the non-compliance by a contracting party with the obligation to transfer the contributions will only have legal consequences for the exclusion of the contracting party concerned from the financing under the Fund and that the obligations to the other contracting parties under the agreement will not be affected.
(21) This Agreement establishes a mechanism by which participating Member States undertake to repay jointly, promptly and with interest to each Member State that does not participate in the single monitoring mechanism or the single resolution mechanism the amount that this non-participating Member State has paid on its own resources, corresponding to the use of the Union's general budget for non-contractual liability and related costs, within the framework of the exercise by the institutions of the Union of powers Under this arrangement, the responsibility of each participating Member State should be distinct and individual, and non-joint and supportive, and each of them should therefore be carried out only on the part of the reimbursement obligation that is its own as determined in accordance with this Agreement.
(22) In accordance with Article 273 of the Treaty on the Functioning of the European Union, the Court of Justice should be competent to rule on disputes between the Contracting Parties relating to the interpretation and application of this Agreement, including disputes concerning compliance with the obligations set out in this Agreement. Member States whose currency is not the euro and which are not parties to this Agreement should be able to bring before the Court of Justice any dispute concerning the interpretation and application of the provisions relating to the reimbursement for non-contractual liability and the costs associated with it in this Agreement.
(23) The transfer of contributions by the Contracting Parties that adhere to the Single Monitoring Mechanism and the Single Resolution Mechanism at a later date on the date of application of this Agreement should be carried out in accordance with the principle of equal treatment with the Contracting Parties participating in these mechanisms at the date of application of this Agreement. Contracting Parties participating in the Single Monitoring Mechanism and the Single Resolution Mechanism on the date of application of this Agreement shall not be expected to bear the burden related to resolutions that should have contributed to the national financing arrangements of the Contracting Parties participating in a later stage. Similarly, they are not expected to bear the cost of resolutions before the date of their participation, which should be met by the Fund.
(24) In the event of termination, pursuant to Article 7 of Regulation (EU) No 1024/2013, of the close cooperation between the ECB and a contracting party whose currency is not the euro, a fair distribution of accumulated contributions from the contracting party concerned, taking into account both the interests of that Contracting Party and the interests of the Fund. Accordingly, Article 4, paragraph 3, of the MRU Regulation sets out the terms, criteria and procedure under which the CRU agrees with the Member State with which close cooperation has been terminated with respect to the recovery of contributions transferred by the said Member State.
(25) In full compliance with the procedures and requirements of the treaties on which the European Union is founded, the objective of the contracting parties is to integrate the substantive provisions of this Agreement as soon as possible in the legal framework of the Union, in accordance with the Treaty on the European Union and the Treaty on the Functioning of the European Union,
The following provisions were agreed:
PART Ier. - Object and scope
Article 1er
1. By this Agreement, Contracting Parties undertake to:
(a) transfer the contributions received at the national level under the BRR Directive and the MRU Regulation to the Single Resolution Fund (hereinafter referred to as the "Fonds") established by the Regulations; and
(b) during a transitional period of the date of application of this Agreement, as defined under Article 12, paragraph 2, of this Agreement, up to the date on which the Fund reaches the target level set out in Article 68 of the MRU Regulation but not exceeding eight years from the date of application of this Agreement (hereinafter referred to as the "transitional period"), affect contributions collected at the national level in accordance with the MRU Regulation and the BRU Directive The use of the compartments is subject to progressive mutualization so that the compartments disappear at the end of the transition period,
supporting the effectiveness of operations and the operation of the Fund.
2. This Agreement applies to Contracting Parties whose establishments are subject to the Single Monitoring Mechanism and the Single Resolution Mechanism, in accordance with the relevant provisions of Regulation (EU) No 1024/2013 and MRU Regulation (hereinafter referred to as "contracting parties participating in the Single Monitoring Mechanism and the Single Resolution Mechanism").
PART II. - Coherence and relationship with EU law
Article 2
1. This Agreement shall be applied and interpreted by the contracting parties in accordance with the treaties on which the European Union is founded and the law of the European Union, in particular Article 4, paragraph 3, of the Treaty on the European Union and the EU legislation relating to the resolution of the establishments.
2. This Agreement applies to the extent that it is consistent with the treaties on which the European Union is founded and with the law of the Union. It does not affect the competence conferred on the Union to act in the field of the domestic market.
3. For the purposes of this Agreement, the relevant definitions referred to in section 3 of the MRU Regulations apply.
PART III. - Transfer of contributions and compartments
Article 3
Transfer of contributions
1. The Contracting Parties shall jointly undertake to transfer to the Fund in an irrevocable manner the contributions they receive from the registered establishments in their respective territory under Articles 69 and 70 of the MRU Regulation, and in accordance with the criteria set out in the said Articles and in the delegated acts and enforcement acts referred to therein. The transfer of contributions shall take place in accordance with the conditions set out in Articles 4 to 10 of this Agreement.
2. The Contracting Parties shall transfer the ex ante contributions corresponding to each year no later than 30 June of the year in question. The first transfer of ex ante contributions to the Fund will take place no later than 30 June 2016 or, if this Agreement has not entered into force on that date, no later than six months after the date of its entry into force.
3. Contributions received by Contracting Parties in accordance with Articles 103 and 104 of BRR Directive before the date of application of this Agreement shall be transferred to the Fund no later than 31 January 2016 or, if this Agreement has not entered into force on that date, no later than one month after the date of its entry into force.
4. Any amount disbursed by the financing mechanism for the resolution of a Contracting Party before the date of application of this Agreement for resolution measures in its territory shall be deducted from the contributions to the Fund to be transferred by that Contracting Party in accordance with paragraph 3. In this case, the contracting party in question remains required to transfer to the Fund an amount equivalent to the amount that would have been required to achieve the target level of its financing mechanism for the resolution, in accordance with Article 102 of the BRR Directive and within the time limits that it provides.
5. The contracting parties transfer ex post contributions immediately after their perception.
Article 4
Compartments
1. During the transitional period, contributions received at the national level are transferred to the Fund to be allocated to compartments corresponding to each contracting party.
2. The size of the compartment of each contracting party is equal to the total of the contributions to be paid by the registered establishments in its territory in accordance with Articles 68 and 69 of the MRU Regulation and to the delegated acts and executions referred to therein.
3. On the date of entry into force of this Agreement, the CRU shall establish, as information only, a list specifying the size of the compartment of each contracting party. This list is updated annually during the transitional period.
Article 5
Functioning of compartments
1. Where, in accordance with the applicable provisions of the MRU Regulation, it is decided to use the Fund, the CRU is authorized to dispose of the Fund compartments as follows.
(a) Initially, costs are borne by the compartments corresponding to the contracting parties in which the establishment or group subject to a resolution procedure is established or approved. Where a cross-border group is subject to a resolution procedure, the costs shall be apportioned among the different compartments corresponding to the contracting parties in which the parent company and affiliates are established or approved proportionally to the amount of contributions that each entity of the group submitted to the resolution procedure has paid to its respective compartment relative to the total amount of contributions that all entities of the group have paid to their national compartments.
Where a contracting party in which the parent company or a subsidiary is established or approved considers that the application of the cost allocation criterion referred to in the first paragraph results in a large asymmetry between the distribution of costs between the compartments and the risk profile of the entities involved in the resolution procedure, it may also request the CRU to consider, without delay, the criteria set out in Article 107, paragraph 5, of the BRR directive. If the CRU fails to comply with the request made by the contracting party concerned, it publicly explains its position.
The financial resources available in the compartments corresponding to the contracting parties referred to in the first paragraph shall be utilized to the cost charged to each national compartment according to the cost allocation criteria provided for in the first and second paragraphs, as follows:
- in the first year of the transitional period, all available financial resources are used in these compartments;
- during the second and third years of the transitional period, it is used, respectively, to 60 per cent and 40 per cent of the financial resources available in those compartments;
- in the following years of the transitional period, the availability of financial resources in the compartments corresponding to the Contracting Parties concerned will be reduced, on an annual basis, by 6 2/3 percentage points.
This annual reduction in the availability of financial resources in the compartments corresponding to the Contracting Parties concerned is distributed evenly per quarter.
(b) In a second phase, if the financial resources available in the compartments of the Contracting Parties referred to in (a) are not sufficient to carry out the mission of the Fund referred to in Article 75 of the MRU Regulation, the financial resources available in the Fund compartments corresponding to all Contracting Parties shall be used.
The financial resources available in the compartments of all Contracting Parties shall be supplemented, as specified in the third paragraph of this item, by the remaining financial resources in the national compartments corresponding to the Contracting Parties concerned by the resolution procedure referred to in paragraph (a).
In the case of a cross-border group resolution, the distribution of the financial resources made available between the compartments of the Contracting Parties concerned under the first and second paragraphs of this item follows the same cost-sharing key, as provided for in (a). If the establishment or establishments approved in one of the Contracting Parties concerned subject to the group resolution do not require all of the financial resources available under this item (b), the available financial resources not required under this item (b) shall be used for the resolution of the entities approved in the other Contracting Parties concerned by the group resolution.
During the transitional period, all national compartments of the Contracting Parties shall be used as follows:
- during the first and second years of the transitional period, it is used, respectively, to 40 per cent and 60 per cent of the financial resources available in those compartments;
- in the following years of the transition period, the availability of financial resources in these compartments increases each year by 6 2/3 percentage points.
This annual increase in the availability of financial resources throughout the national compartments of the Contracting Parties is distributed evenly per quarter.
(c) Thirdly, if the financial resources used pursuant to item (b) are not sufficient to carry out the mandate of the Fund referred to in Article 75 of the MRU Regulation, any remaining financial resources shall be used in the compartments corresponding to the Contracting Parties referred to in item (a).
In the case of a cross-border group resolution, the compartments of the Contracting Parties concerned that have not provided sufficient financial resources under (a) and (b) with respect to the resolution of registered entities in their territory are used. Contributions from each compartment shall be determined on the basis of the cost allocation criteria set out in (a).
(d) In a fourth phase, and without prejudice to the powers of the CRU referred to in (e), if the financial resources referred to in (c) are not sufficient to cover the costs of a particular resolution measure, the Contracting Parties concerned referred to in (a) shall transfer to the Fund the ex post-extraordinary contributions from the establishments authorized in their territory, collected in accordance with the criteria set out in Article 70 of the MRU Regulation.
In the case of a cross-border group resolution, ex post contributions are transferred by the Contracting Parties concerned who have not provided sufficient financial resources under items (a) to (c) with respect to the resolution of registered entities in their territory.
(e) If the financial resources referred to in point (c) are not sufficient to cover the costs of a particular resolution measure, and as long as the ex post-extraordinary contributions referred to in point (d) are not immediately mobilizable, including for reasons related to the stability of the institutions concerned, the CRU may exercise its power to contract for the Loans Fund or other forms of support pursuant to sections 72 and 73 of the MRU Regulation, or its temporary authority
In cases where the CRU decides to exercise the powers referred to in the first paragraph of this item, the Contracting Parties concerned referred to in (d) shall transfer to the Fund the ex post-extraordinary contributions in order to repay loans or other forms of support, or the temporary transfer between the compartments.
2. Revenues from investments made with the amounts transferred to the Fund in accordance with section 74 of the MRU Regulation shall be allocated to each of the compartments on a prorated basis of their respective available financial resources, excluding any receivables or any irrevocable payment commitments for the purposes of section 75 of the MRU Regulation attributable to each compartment. Revenues from investments related to resolution operations that may be carried out by the Fund in accordance with Article 75 of the MRU Regulation shall be allocated to each compartment on the basis of its respective contribution to a particular resolution measure.
3. All compartments are merged and disappear at the end of the transition period.
Article 6
Transfer of additional ex ante and target
1. The contracting parties shall, where appropriate, ensure that the Fund is reconstituted by means of ex ante contributions, which shall be paid within the time limits provided for in Article 68, paragraphs 2 and 3, and paragraph 5, point (a), of the MRU Regulation to be up to the amount required to reach the target level set out in Article 68, paragraph 1, of the MRU Regulation.
2. During the transitional period, the transfer of replenishment-related contributions is divided into the following compartments:
(a) the Contracting Parties concerned by the resolution transfer the contributions to the part of their compartment that has not yet been pooled in accordance with Article 5, paragraph 1, (a) and (b);
(b) all Contracting Parties shall transfer the contributions to the part of their respective compartment being pooled in accordance with Article 5, paragraph 1, points (a) and (b).
Article 7
Temporary transfer between compartments
1. Without prejudice to the obligations provided for in Article 5, paragraph 1, points (a) to (d), Contracting Parties concerned with a resolution procedure may, during the transitional period, request the CRU to temporarily use the unused share of the financial resources available in the Fund compartments that correspond to the other contracting parties. In this case, the Contracting Parties concerned then transfer to the Fund, before the end of the transitional period, ex post extraordinary contributions of an amount equivalent to that paid to their compartments, plus accrued interest, in order to re-alarm the other compartments.
2. The amount temporarily transferred from each compartment to the recipient compartments is proportional to their size, determined in accordance with section 4, paragraph 2, and does not exceed 50% of the available financial resources not yet shared under each compartment. In the case of a cross-border group resolution, the distribution of the financial resources made available between the compartments of the Contracting Parties concerned under this paragraph follows the same cost-sharing key, as provided for in Article 5, paragraph 1 (a).
3. The CRU shall make decisions regarding requests for the temporary transfer of financial resources between the compartments referred to in paragraph 1 by a simple majority of its members, in plenary session, as set out in Article 52, paragraph 1, of the MRU Regulation. In its decision on a temporary transfer, the CRU specifies the interest rate, refinancing period and other terms and conditions applicable to the transfer of financial resources between the compartments.
4. The decision of the CRU approving the temporary transfer of financial resources referred to in paragraph 3 may come into force only on the condition that none of the contracting parties from the compartments in which the transfer was made shall object within four calendar days from the date of adoption of the decision.
During the transitional period, the right of objection of a Contracting Party may be exercised only if:
(a) it is likely to request that the financial resources of the corresponding national compartment fund a short-term resolution operation or if the temporary transfer would jeopardize the application of an ongoing resolution measure in its territory;
(b) the temporary transfer would be in excess of 25 per cent of its share of the national undivided compartment, in accordance with article 5, paragraph 1, points (a) and (b); or
(c) it considers that the contracting party whose compartment benefits from temporary transfer does not provide refinancing guarantees from national sources or does not receive support from SEM in accordance with agreed procedures.
The Contracting Party that intends to issue a duly substantiated objection that one of the situations referred to in (a) to (c) occurred.
In the event that objections are raised in accordance with this paragraph, the decision of the CRU on temporary transfer shall be adopted by excluding the financial resources of the compartments of the Contracting Parties which have objected.
5. If an establishment of a contracting party from the compartment of which financial resources have been transferred under this Article is subject to a resolution procedure, the contracting party may request the CRU to transfer from the Fund to its compartment an amount equivalent to that initially transferred from that compartment. Following such a request, the CRU immediately approves the transfer.
In this case, Contracting Parties that have initially benefited from the temporary use of financial resources are required to transfer to the Fund the amounts allocated to the Contracting Party concerned under the first paragraph, in accordance with the terms and conditions to be specified by the Council.
6. The CRU sets out general criteria for determining the conditions under which the temporary transfer of financial resources between the compartments referred to in this section takes place.
Article 8
Contracting Parties whose currency is not the euro
1. in the event that, at a later date on the date of application of this agreement under Article 12, paragraph 2, the Council of the European Union adopts a decision repealing the derogation of which is the subject of a Contracting Party whose currency is not the euro, as defined in Article 139, paragraph 1, of the Treaty on the Functioning of the European Union, or its derogation,
2. Any amount disbursed by the financing mechanism for the resolution of a Contracting Party referred to in paragraph 1 for resolution measures in its territory shall be deducted from those to be transferred to the Fund by that Contracting Party under paragraph 1. In this case, the contracting party in question remains required to transfer to the Fund an amount equivalent to the amount that would have been required to achieve the target level of its financing mechanism for the resolution, in accordance with Article 102 of the BRR Directive and within the time limits that it provides.
3. The CRU shall determine, in agreement with the Contracting Party concerned, the exact amount of the contributions that the CRU shall transfer, under the criteria set out in paragraphs 1 and 2.
4. The costs of any resolution action taken on the territory of the Contracting Parties whose currency is not the euro before the date on which the decision to repeal the derogation takes effect, as defined in Article 139, paragraph 1, of the Treaty on the Functioning of the European Union, or their derogation as referred to in the Protocol on certain provisions relating to Denmark, or before the date of entry into force of the close-up Article of the ECB relative Regulation
If the ECB, in its full assessment of the credit institutions referred to in Article 7, paragraph 2, point (b), of Regulation (EU) No 1024/2013, considers that one of the establishments of the Contracting Parties concerned is failing or likely to become such, the resolution costs for the resolution measures relating to these credit institutions are not borne by the Fund.
5. In the event of termination of close cooperation with the ECB, contributions transferred by the contracting party concerned by such termination shall be recovered in accordance with Article 4, paragraph 3, of the MRU Regulation.
The termination of close cooperation with the ECB does not affect the rights and obligations of the contracting parties arising out of resolution measures that have taken place during the period when the Contracting Parties concerned are subject to this Agreement and which concern:
- transfer of ex post contributions in accordance with Article 5, paragraph 1 (d);
- replenishment of the Fund in accordance with Article 6; and
- temporary transfer between compartments in accordance with Article 7.
Article 9
Compliance with the general principles and objectives of the resolution
1. The use of the mutualized resources of the Fund and the transfer of contributions to the Fund are subject to the existence of a legal framework for the resolution, the rules of which are equivalent to those set out in the MRU Regulations as set out below, and which produce at least the same results as those rules, without being amended:
(a) the procedural rules relating to the adoption of a resolution device in accordance with Article 18 of the MRU Regulation;
(b) the rules relating to the decision-making process of the CRU set out in Articles 52 and 55 of the MRU Regulation;
(c) the general principles governing the resolution set out in Article 15 of the MRU Regulation, including the principles whereby the shareholders of the establishment subject to the resolution procedure are the first to bear the losses and creditors of the establishment subject to the resolution procedure shall bear the losses after the shareholders according to the order of priority of their claims, as set out in paragraph 1, (a) and (b), of that Article;
(d) the rules relating to the resolution instruments referred to in Article 22, paragraph 2, of the MRU Regulation, including those relating to the application of the internal relief instrument described in Article 27 of the Regulations and Articles 43 and 44 of the BRR Directive and the specific thresholds established therein with respect to the assignment of losses to shareholders and creditors and the Fund's contribution to a particular resolution measure.
2. Where the rules concerning the resolution referred to in paragraph 1, provided for in the MRU Regulation on the date of its original adoption, are repealed or otherwise amended against the will of any of the Contracting Parties, including the adoption of rules of internal renaffing in a manner that is not equivalent or that results not at least identical and not less stringent than that arising from the application of the MRU Regulation on the date of its In the application to that effect, any Contracting Party may request the Court of Justice to suspend the execution of a disputed measure, in which case Article 278 of the Treaty on the Functioning of the European Union and Articles 160 to 162 of the Rules of Procedure of the Court of Justice are applicable.
3. The procedure referred to in paragraph 2 of this article does not prejudge the use of remedies provided for under Articles 258, 259, 260, 263, 265 and 266 of the Treaty on the Functioning of the European Union or affect it.
Article 10
Respect
1. The contracting parties shall take the necessary measures in their national legal orders to ensure that they comply with their obligation to jointly transfer the contributions in accordance with this Agreement.
2. Without prejudice to the power of the Court of Justice under Article 14 of this Agreement, the CRU, acting on its own initiative or at the request of one of the contracting parties, may verify whether a contracting party has failed to meet its obligation to transfer contributions to the Fund, as provided for in this Agreement.
If the CRU considers that a contracting party has failed to meet its obligation to transfer the contributions, it shall set a time limit in which the contracting party concerned shall take the necessary measures to put an end to the breach. If the Contracting Party concerned does not take the necessary measures to put an end to the failure within the time limit set by the CRU, the use of the compartments of all Contracting Parties in accordance with Article 5, paragraph 1, point (b), is excluded with respect to the resolution of registered establishments in the Contracting Party concerned. This exclusion ceases to apply from the time the CRU determines that the Contracting Party concerned has taken the necessary steps to end the breach.
3. The decisions of the CRU made under this section shall be by a simple majority of the President and of the members referred to in Article 43, paragraph 1, point (b), of the MRU Regulation.
PART IV. - General and final provisions
Article 11
Ratification, approval or acceptance and entry into force
1. This Agreement shall be subject to the ratification, approval or acceptance of its signatories in accordance with their respective constitutional rules. Instruments of ratification, approval or acceptance shall be deposited with the General Secretariat of the Council of the European Union (hereafter referred to as the depositary). The depositary shall notify the other signatories of the deposit of each instrument and the date of such deposit.
2. This Agreement comes into force on the first day of the second month following the date on which the instruments of ratification, approval or acceptance are deposited by the signatories participating in the Single Monitoring Mechanism and the Single Resolution Mechanism that represent at least 90% of the total weighted votes of all Member States participating in the Single Monitoring Mechanism and the Single Resolution Mechanism, as provided for in Protocol No. 36 on the Transitional Provisions annexed to the Treaty on the European Union
Article 12
Implementation
1. This Agreement applies to Contracting Parties that have deposited their instruments of ratification, acceptance or approval provided that the MRU Regulation has already entered into force.
2. Subject to subsection 1 of this section and provided that it has entered into force in accordance with section 11, paragraph 2, this Agreement shall apply as from 1er January 2016 to the Contracting Parties participating in the Single Monitoring Mechanism and the Single Resolution Mechanism that deposited their instrument of ratification, acceptance or approval on that date. If this Agreement has not entered into force on 1er January 2016, it applies from the date of entry into force to the Contracting Parties participating in the Single Monitoring Mechanism and the Single Resolution Mechanism that have deposited their instrument of ratification, acceptance or approval on that date.
3. This Agreement applies to Contracting Parties participating in the Single Monitoring Mechanism and the Single Resolution Mechanism that have not deposited their instrument of ratification, acceptance or approval on the date of application referred to in paragraph 2 from the first day of the month following the deposit of their respective instrument of ratification, approval or acceptance.
4. This Agreement does not apply to Contracting Parties that have deposited their instruments of ratification, acceptance or approval but do not participate in the single monitoring mechanism or the single resolution mechanism on the date of application of this Agreement. These Contracting Parties shall, however, participate in the compromise referred to in Article 14, paragraph 2, from the date of application of this Agreement for the purpose of bringing to the Court of Justice any dispute concerning the interpretation and application of Article 15.
This Agreement shall apply to the Contracting Parties referred to in the first paragraph from the Effective Date of the Decision repealing the derogation of which they are the subject, as defined in Article 139, paragraph 1, of the Treaty on the Functioning of the European Union, or their derogation as set out in the Protocol on Certain Provisions relating to Denmark or, in the absence of such a decision, as from the date of entry into force
Subject to Article 8, this Agreement shall cease to apply to Contracting Parties that have established close cooperation with the ECB referred to in Article 7, paragraph 2, of Regulation (EU) No 1024/2013 from the date of termination of such close cooperation in accordance with Article 7, paragraph 8, of that Regulation.
Article 13
Access
This Agreement shall be open to the accession of the Member States other than the Contracting Parties. Subject to Article 8, paragraphs 1 to 3, the accession shall take effect at the time of deposit of the instrument of accession with the depositary, which shall notify the other contracting parties. After authentication by the Contracting Parties, the text of this Agreement in the official language of the Member State, which is also an official language of the institutions of the Union, is deposited in the archives of the depositary as an authentic text of this Agreement.
Article 14
Settlement of disputes
1. Where a contracting party is not in agreement with the interpretation by another contracting party of any of the provisions of this Agreement or when it considers that another contracting party has not complied with its obligations under this Agreement, it may refer to the Court of Justice. The decision of the Court of Justice is binding on the parties to the proceedings.
If the Court of Justice recognizes that a Contracting Party has failed to comply with its obligations under this Agreement, the Contracting Party concerned shall take the necessary steps to comply with the decision within a period to be determined by the Court of Justice. In the event that the Contracting Party concerned does not take the necessary measures to put an end to the breach within the time limit set by the Court of Justice, the use of the compartments of all Contracting Parties in accordance with Article 5, paragraph 1, point (b), shall be excluded for the establishments approved in the Contracting Party concerned.
2. This Article constitutes a compromise between the Contracting Parties within the meaning of Article 273 of the Treaty on the Functioning of the European Union.
3. Member States whose currency is not the euro and which have not ratified this Agreement may notify the depositary of their intention to participate in the compromise referred to in paragraph 2 of this Article for the purpose of bringing to the Court of Justice any dispute concerning the interpretation and application of Article 15. The depositary shall communicate the notification of the member State concerned to the Contracting Parties, the member State concerned shall then become a party to the compromise referred to in paragraph 2 of this article for the purposes described in this paragraph.
Article 15
Refund
1. The contracting parties undertake to pay jointly, promptly and with interest to each Member State that does not participate in the single monitoring mechanism or the single resolution mechanism (hereafter referred to as "non-participating Member State") the amount that this non-participating Member State has paid on its own resources, corresponding to the use of the Union's general budget for non-contractual liability and related costs, within the framework of the exercise of the powers of the institutions of the Union.
2. The amount of the alleged contribution of each non-participating Member State in respect of non-contractual liability and related costs shall be determined on the basis of their respective gross national income defined in accordance with Article 2, paragraph 7, Decision 2007/436/EC, Euratom of the Council (11) or any act of the Union amending or repealing that decision.
3. The costs of reimbursement shall be apportioned among the contracting parties on the basis of their respective gross national income defined in accordance with Article 2, paragraph 7, of Decision 2007/436/EC, Euratom of the Council or any act of the Union amending or repealing that decision.
4. Non-participating Member States shall be reimbursed on the dates of registration to the accounts referred to in Article 9, paragraph 1, of Council Regulation (EC, Euratom) No. 1150/2000 (12) or to any act of the Union amending or repealing that regulation of the amounts corresponding to the payments made on the Union's budget for non-contractual liability and related costs, as a result of the adoption of the relevant corrigendum budget.
All interest shall be calculated in accordance with the interest provisions on amounts made available lately applicable to the Union's own resources. The amounts shall be converted from national currencies to euros at a exchange rate fixed in accordance with Article 10, paragraph 3, first paragraph, of the Council Regulation (EC, Euratom) No. 1150/2000 or to any act of the Union amending or repealing this Regulation.
5. The Commission shall coordinate any reimbursement of contracting parties in accordance with the criteria set out in paragraphs 1 to 3. The coordinating role of the Commission includes the calculation of the basis on which payments are to be made, the communication to Contracting Parties of notice requesting that payments be made and the calculation of interest.
Article 16
Review
1. No later than two years from the date of entry into force of this Agreement, and every ten eight months, the CRU assesses the implementation of this Agreement, and in particular the proper operation of the use of the mutualized resources of the Fund, as well as its impact on financial stability and the domestic market, and submits a report thereon to the European Parliament and the Council.
2. At the latest within a period of ten years from the date of entry into force of this Agreement, on the basis of the assessment of the experience gained in the implementation of this Agreement, as set out in the reports prepared by the CRU pursuant to paragraph 1, the necessary measures shall be taken, in accordance with the Treaty on the European Union and the Treaty on the Functioning of the European Union, with a view to integrating the content of this Agreement into the legal framework of the European Union.
Done in Brussels on 21 May 2014, in a single original copy, including versions in German, English, Bulgarian, Croatian, Danish, Spanish, Estonian, Finnish, French, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Dutch, Polish, Portuguese, Romanian, Slovak, Slovenian, Swedish and Czech Republic are equally authentic, and deposited in the archives of the depositary which transmits each copy thereof.
DECLARATION OF THE CONTRACTING PARTIES AND OBSERVERS OF THE INTERGOVERNMENTAL CONFERENCE ON THE MEMBERS OF THE EUROPEAN UNION COUNCIL
Declaration No. 1
In full compliance with the procedural requirements established by the treaties on which the European Union is founded, the contracting parties and observers of the intergovernmental conference that are members of the Council of the European Union declare that their objective and intention are only, unless they all agree otherwise:
(a) Article 4, paragraph 3, of the MRU Regulation on the date of its original adoption is not repealed or amended;
(b) the principles and rules relating to the internal swelling instrument are not repealed or amended in a manner that would not be equivalent or that would not produce at least an identical and not less stringent result than that derived from the application of the MRU Regulation on the date of its initial adoption.
Declaration No. 2
Signatories to the Intergovernmental Agreement on the Transfer and Mutualization of Contributions to the Single Resolution Fund declare that they will work to carry out its ratification process in accordance with their respective national legal requirements in a timely manner so that the Single Resolution Mechanism is fully operational by 1er January 2016.
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Notes
(1) Regulation of the European Parliament and the Council establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment companies within the framework of a single resolution mechanism and a single resolution fund, and amending Regulation (EU) No 1093/2010 of the European Parliament and the Council.
(2) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 concerning prudential requirements for credit institutions and investment companies and amending Regulation (EU) No 648/2012 (OJ L 176 of 27.6.2013, p. 1).
(3) Directive 2013/36/EU of the European Parliament and the Council of 26 June 2013 on access to credit institutions and prudential supervision of credit institutions and investment companies, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176 of 27.6.2013, p. 338).
(4) Regulation (EU) No 1093/2010 of the European Parliament and Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No. 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ L 331 of 15.12.2010, p. 12).
(5) Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Professional Pension Authority), amending Decision No. 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ L 331 of 15.12.2010, p. 48).
(6) Regulation (EU) No. 1095/2010 of the European Parliament and Council of 24 November 2010 establishing a European Supervisory Authority (European Financial Markets Authority), amending Decision No. 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331 of 15.12.2010, p. 84).
(7) Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on macroprudential supervision of the financial system in the European Union and establishing a European Committee for Systemic Risk (OJ L 331 of 15.12.2010, p. 1).
(8) Council Regulation (EU) No 1024/2013 of 15 October 2013 entrusting the European Central Bank with specific missions relating to prudential supervision policies of credit institutions (OJ L 287 of 29.10.2013, p. 63).
(9) Directive of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment companies and amending Council Directive 82/891/EEC as well as Council Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU and Regulations (EU) No 1093/2010 and (EU) No 6
(10) Rules of Procedure of the Court of Justice of 25 September 2012 (OJ L 265 of 29.9.2012, p. 1), including any subsequent amendments.
(11) Decision of the Council of 7 June 2007 on the System of Clean Resources of the European Communities (OJ L 163 of 23.6.2007, p. 17).
(12) Council Regulation (EC, Euratom) No. 1150/2000 of 22 May 2000 on the application of Decision 2007/436/EC, Euratom on the System of Clean Resources of the European Communities (OJ L 130 of 31.5.2000, p. 1), including any subsequent amendments.

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